THE SEGAL COMPANY 1920 N Street, NW, Suite 400 Washington, DC 20036-1659 T 202.833.6400 F 202.833.6490 www.segalco.com

DIRECT DIAL NUMBER (202) 833-6455

E-MAIL ADDRESS jmazo@segalco.com

Benefits, Compensation and HR Consulting ATLANTA BOSTON CALGARY CHICAGO CLEVELAND DENVER HARTFORD HOUSTON LOS ANGELES MINNEAPOLIS NEW ORLEANS NEW YORK PHILADELPHIA PHOENIX PRINCETON RALEIGH SAN FRANCISCO TORONTO WASHINGTON, DC

Multinational Group of Actuaries and Consultants BARCELONA BRUSSELS DUBLIN GENEVA HAMBURG JOHANNESBURG LONDON MELBOURNE MEXICO CITY OSLO PARIS

June 6, 2007

Legislative and Regulatory Department Pension Benefit Guaranty Corporation 1200 K Street, NW. Washington, DC 20005-4026 Re: Draft Procedure under PPA Section 1106 [Submitted by E-Mail]

Dear Friends, These comments are submitted on behalf of a group of professionals representing roughly 20 or so pension plans that are planning to make the election authorized by Section 1106 of the Pension Protection Act of 2006 (“Section 1106”), as amended by section 6611(a) of H.R. 2206 of the Iraq Accountability Appropriations Act, (the “Amendment”), which became law on May 26, 2007. Our group worked closely with Congress to secure enactment of Section 1106 and the Amendment, which was designed to assure that Section 1106 would be interpreted and applied in a way that would make it readily available to the plans intended to benefit. We applaud the PBGC for making the draft Section 1106 election procedure (the “Draft”) available for public comment. However, as explained in detail below, we urge the agency to revise and streamline the election procedure to meet both the substance and the spirit of Section 1106, as amended. In particular, we call on the PBGC to roll back the data and documentation requirements of the Draft, asking only for the minimum necessary for plans to demonstrate their eligibility to make the election. Given the extremely short deadline for plans to make the election, requiring them to assemble extra data and materials would undercut the streamlining effect of the Amendment and would be viewed as an effort to thwart its intent. The Amendment In summary, the Amendment has two main points. Maintained pursuant to a collective bargaining agreement. The Amendment provides an objective standard for determining, in the case of a plan that makes a Section 1106 election,

Washington, DC 20005-4026 June 6, 2007 Page 2

whether an employer is maintaining the plan pursuant to a collective bargaining agreement. That test is met:

if a collective bargaining agreement, expressly or otherwise, provides for or permits employer contributions to the plan by one or more employers that are signatory to such agreement, or participation in the plan by one or more employees of an employer that is signatory to such agreement, regardless of whether the plan was created, established, or maintained for such employees by virtue of another document that is not a collective bargaining agreement.

There is no place for agency discretion in the application of this test. If at least two separate employers are signatory to collective bargaining agreements requiring them to contribute, authorizing them to cover any of their union-represented employees in the pension plan, or recognizing such participation, they are maintaining the plan pursuant to a collective bargaining agreement, regardless of any other facts or circumstances surrounding the employees’ plan participation. Effective date of 1106 election. The Amendment allows plans to make their 1106 elections effective as of any plan year starting as early as January 1, 1999 or ending as late as December 31, 2007. Specific Comments on the PBGC Draft Procedure 1. Three-Agency Solution A Section 1106 election applies, by its terms, “for all purposes under … [ERISA] and under the Internal Revenue Code of 1986 …”, ERISA section 3(37)(g)(ii), see IRC section 414(f)(6)(B). Sections 1(a) and 2(f) of the Draft reflect this. Yet the Preamble to the Draft implies that the IRS and DOL have only confirmed their concurrence with a multiemployer status election approved by PBGC if the plan meets the safe harbor outlined in the Draft. It is imperative that a plan that elects multiemployer status “for all purposes” under the principal governing law be assured that that the election will be respected for all those purposes. We urge that the Preamble be revised to remove any doubt about the across-the-board impact of an 1106 election. 2. Timeliness of Submission To speed the completion and consideration of these submissions, the procedure should include a summary checklist of the information and documents required, and make clear that a submission is considered complete if it includes most of the core information covered in the checklist. It should also be revised to confirm that the plan sponsor may later supplement or update the filing, or correct inadvertent errors – whether or not at PBGC’s request – without affecting affect the timeliness of the submission, as long as the plan sponsor reasonably believed that it was largely complete at the time it was filed. This is important because a number of these plans cover

Washington, DC 20005-4026 June 6, 2007 Page 3

employees of hundreds of employers, many of which are small, with few employees and fewer still who can respond promptly and correctly to a complex data request. Of course, once the filing in support of a Section 1106 election is streamlined as we are suggesting this should be much less of a problem. 3. Collective Bargaining Agreements and Related Data The Draft asked for inclusion with the Section 1106 election of a copy of each collective bargaining agreement (“CBA”) requiring the employer to contribute to the plan during each of the 2003 – 2006 plan years, along with a breakdown of the number of plan participants covered under each such agreement and the amount contributed or required to be contributed on their behalf. In our view, this asked for too much documentation even before enactment of the Amendment. Now it is clear that this part of the information request can and should be pruned dramatically. Documentation of one or two CBAs. Under the Amendment a plan need only show that, within the relevant time frame, it was maintained pursuant to one or more CBAs by at least two employers for the benefit of at least one employee each. Accordingly, that is all that should have to be documented in the 1106 election package. Plans should not be called upon to collect and submit copies of all collective bargaining agreements that covered participants during the pertinent plan years, if they can demonstrate that they qualify for the election by submitting two such agreements. Number and cost of benefits for union-represented participants. Plans could be required to report how many participants were covered, during the relevant period, under the one or two CBAs that they file with the Section 1106 election package. Or, to ease the filing requirement and eliminate another area for possible inadvertent error, the plan sponsor could be required to certify that at least two employers covered at least one plan participant apiece under those CBAs. There is no apparent reason for requiring a report on the amount of contributions required specifically with respect to the union-represented participants, especially since most of the plans that are likely to make Section 1106 elections do not, to our knowledge, identify the contributions attributable to bargained and non-bargained participants separately. Eliminating the head-count and dollar-count features has the additional advantage of eliminating the need for guidance on how those counts would be conducted. Relevant CBAs. As now amended, the law treats a plan as maintained pursuant to a CBA if the agreement, “expressly or otherwise”, authorizes the employer to contribute to the plan or to facilitate participation in it by the employer’s union-represented employees. The term “expressly or otherwise” makes clear that the CBA does not need to specify a contribution requirement, or even to name the pension plan in which the people working under the agreement will participate. Since it is a fundamental tenet of federal labor law that retirement benefits are a mandatory subject of bargaining, an employer cannot legally have its bargaining-unit employees participate in a pension plan unless their union consents, expressly or otherwise. See Inland Steel Co., 77 NLRB 1, enforced, 170 F.2d 247 (7th Cir. 1948), cert. denied 336 U.S. 960 (1949).

Washington, DC 20005-4026 June 6, 2007 Page 4

Safe harbor. The Draft contains a safe harbor under which a plan will be deemed to be maintained pursuant to one or more CBAs if at least 50% of its active participants are covered by CBAs and at least 50% of the contributions are required to be made on their behalf. Consistent with these comments, we do not believe such a safe harbor is either necessary or appropriate. 4. Contributions from Tax Exempt Employers The Draft proposes several practical alternatives for plans to show that their contributing employers are tax exempt. We appreciate and support that decision. Section 1106 allows plans to make the election if “substantially all of the plan’s employer contributions” for the relevant period were made or required to be made by tax exempt organizations. In other contexts, “substantially all” has been interpreted to mean at least 85%, see Central States, Southeast and Southwest Areas Pension Fund v. Robinson Cartage Company, 55 F.3d 1318, 1321 (7th Cir. 1995), Continental Can Co. v. Chicago Truck Drivers Pension Fund, 916 F2d 1154 (7th Cir. 1990). We recommend that the PBGC adopt that standard as a safe harbor, to reinforce the objective character of the Section 1106 election. Note that a plan could meet the substantially-all-contributions standard regardless of how many or how few contributing employers are tax exempt, as long as tax exempt employers are responsible for substantially all of contributions. We recommend that PBGC streamline the procedure further and allow plans to demonstrate that they meet this eligibility requirement by demonstrating the tax exemption of the employers that made or were required to make substantially all of the contributions for each of the pertinent plan years, rather than reporting on the taxable status of all contributing employers. Plans using the proposed 85% safe harbor would only have to report on employers contributing up to that level, for example. It would be helpful too if the PBGC clarified that only the first page of the LM-2 need be provided by a plan using the LM-2 to demonstrate that an employer is tax exempt, rather than having to submit the entire document. 5. Employers and Their Controlled Groups Section 3(d)(3)(ii) requires a listing not only of each employer required to contribute to the plan and any controlled-group connections among the contributing employers, but also of all trades or businesses of each contributing employer. This asks for more data than the PBGC reasonably needs to judge whether a plan is eligible to make a Section 1106 election. Since this excess information is likely to confuse the employers, who may, as a result, delay responding or respond incorrectly, we urge you to pare this down to the essentials. Specifically, as emphasized above, a plan needs to be sponsored by at least two employers that maintain it pursuant to one or more CBAs. For this purpose, corporations, trades or businesses under common control are treated as a single employer. Thus, at least two employers that are not part of the same controlled group must be maintaining the plan pursuant to CBAs. A plan making a Section 1106 election should be required to demonstrate that it satisfies that test, by

Washington, DC 20005-4026 June 6, 2007 Page 5

showing that the employers whose CBAs are being submitted are not under common control within the meaning of the applicable regulations. However, there is no reason to require the plan to canvass all of its contributing employers in an effort to identify any trades or businesses in which any of them may have an ownership interest, and then to analyze those links to determine whether they amount to common control. We have no objection to PBGC’s asking for a current list of employers that are obligated to contribute to the plan or whose employees are covered by the plan, and for an indication whether any of those employers are under common control with one another. We do, however, recommend dropping the requirement to report any other trades or businesses to which the contributing employers may be related. 6. Effective Date of the Election: “Relevant Period” As noted, the Amendment allows eligible plans to designate the first day of any plan year that starts and ends during the period 1999 – 2008 as the effective date of the shift to multiemployer status. The plan must have met the criteria for the election – maintained by two or more employers pursuant to CBAs, substantially all of the contributions from tax exempt organizations – for the three plan years immediately preceding that effective date.1

Obviously, the revised procedure will have to address this new feature of the Section 1106 election. References in these comments to “the relevant period” or the “relevant plan years” are references to that 3-year period and, where appropriate, to the year designated as the first year of multiemployer status. 7. Withdrawal Liability Rules Section 3(d)(5)(v) of the Draft asks plans that identified themselves as multiemployer plans in their filings with PBGC for any of their 2003 – 2005 plan years to submit a copy of their withdrawal liability rules and data concerning withdrawal liability assessed, as part of their Section 1106 election package. It is not apparent why that was considered relevant to the Section 1106 election prior to the Amendment.2 Now that plans can make the election retroactively based solely on a showing that they were maintained pursuant to collective bargaining agreements and that substantially all of their contributions were from tax exempt employers the irrelevance of that inquiry is evident. We recommend that it be deleted. 8. Date of Plan Establishment To be eligible to make a Section 1106 election, a plan must have been established before September 2, 1974. Section 3(d)(5)(iv) of the Draft asks for the date the plan was established,

1 Section 1106 does not require a demonstration that a plan meet those criteria as of the year the election takes effect or

any later date, although it does provide that the election is terminated following a plan year in which less than half the contributions are from tax exempt employers.

2 Among other things, MPPAA prescribes a presumptive basis for determining and collecting withdrawal liability precisely so that multiemployer plans do not have to be amended to do so.

Washington, DC 20005-4026 June 6, 2007 Page 6

“as reflected in a plan document, trust instrument … [or certain other formal documentation] relating back to the period during which the plan was established.” It is not clear whether that means the documentation must date from that period, or just that it refer to the plan’s establishment during that period. Since some of the plans expected to make the election date from the 1960s or earlier, original documents may no longer be available. Plans should be able to meet this requirement by submitting more recent documents that reliably refer to the plan as having been established earlier. Also, given the possible difficulty in locating foundational documents, a plan making a Section 1106 election should only be required to prove by the 8/17/2007 filing deadline that they were established before September 2, 1974, regardless of how much earlier the plan may in fact have been adopted. Plans to Which the 2007 Amendment Applies In determining the status of any plan that submits a Section 1106 election to be a multiemployer plan, the law now calls on DOL, IRS and PBGC to apply the concept of “maintained pursuant to a collective bargaining agreement” as added by the Amendment, whether or not the PBGC ultimately approves the plan’s submission in support of its election. This point is evident from the text of the Amendment, and it will be of primary importance if the PBGC continues to require the submission of exhaustive historical data and supporting documentation as part of the Section 1106 election process. Given the very short time left for assembling the submission package and the small size and limited administrative capabilities of many of these plans’ contributing employers, it is essential that a plan’s multiemployer status not be put at risk due to omissions or inaccuracies. This is consistent with the most natural reading of the amended law. The Amendment lays out in detail the approach to be followed in judging whether a plan that uses the Section 1106 process to formalize its multiemployer status is maintained pursuant to a CBA. Specifically, the definition in ERISA section 3(37)(G)(vii) applies to “a plan making an election under this subparagraph …” That formulation includes all plans that submit Section 1106 elections. It is not limited to those whose elections are ultimately approved by PBGC. With the enactment of the Amendment, Congress has underscored its determination to allow plans that meet the Section 1106 description, as amended, to be treated for all purposes under ERISA and the IRC as multiemployer plans. A rigid, logistically overwhelming election process would blunt the purpose of the law.

******** We appreciate the PBGC’s prompt consideration of these comments, and will be happy to provide any additional information that may be of help in evaluating them. Sincerely,

Washington, DC 20005-4026 June 6, 2007 Page 7

Judith F. Mazo, The Segal Company, Washington, DC

John Leary, O’Donoghue & O’Donoghue, Washington, DC

Joyce A. Mader, O’Donoghue & O’Donoghue, Washington, DC

John M. McIntire, O’Donoghue & O’Donoghue, Washington, DC

Richard Griffin, General Counsel, International Union of Operating Engineers, Washington, DC

James R. Raborn, Baker & Botts, Houston, TX

James S. Ray, Law Offices of James S. Ray, Alexandria, VA

Marc H. Rifkind, Slevin & Hart, Washington, D.C.

Seymour M. Waldman, Vladeck, Waldman, Elias & Engelhard, New York, NY

Adrienne H. Wyker, Blake & Uhlig, Kansas City, KS

June 8,2007

Legislative and Regutat~ry Department Pension Benefit Guaranty Corporation 1200 K Street, NW. Washington, DC 20005-4026

( Re: Draft Procedure under PPA Section 11 06

( Gentlepersons:

The Sheet Metal Workers' International Association joins in the comments submitted by The Segal Company on June 6, 2007. In particular, the Association writes to emphasize the need for a clear and streamlined election procedure that adheres closely to the terms of the legislation.

I Thank you for your consideration.

I Sincerely,

MICHAEL J. SULLIVAN General President

MJSIMRlIam cc: B. Hernandez

I June 12,200': I

J3Y FAX (202) 326-4224 1 John H. Hanley, Director ,

Constance Markakis, Esq. Legislative and Regulatory De

1200 K St~eet, N!i7 Pension Benef3 Gunrantee Corporation

Washington. DC 20005-4026 I

Re: Election of Multiemployer blan Status Ulldcr the Pension Protection Act as Applied to the Employees' Retirement Plan of the National Education Association of the United States

Dear Mr. Hanley w d Ms. ~arliakis:

This firm represents th ' NationaI StaffOrg&~~lllzation (NSU) m1r2 tht ational Education Association Rdiree 3 Organization (NEARO).

Through its affiliated uhionr, NSO represents certain active ernpis>e 1 .s of the National Educaiional ~ssocia t ibn (NEA) and Y E 4 aililiate employers arounh the country. Reprcscn~tives of K S 0 and NSO affiliated unions sit on the Retil-ement Board of the Employees' Retirement ?Ian of the National Ilducation Association (' h e Plan")

We are writing on behdf of all actively employed participants in the Ian, including but not limlred to employees represented by M O afxliates. We also i) ibrite oIr behalf of retired participants w o , cllthougl~ NSO affiliates do not represent them in collective bargaining, arc reprdsented on the Retirement Board by represe!lt>rtives of NEARO. I

I

The Plan is a multiple dmployer pln11 controlled by the Executive c o b i t l e e of the NEA, the governing body cbf the NEA. 1Ve havc been infbmrmed that the Executive Conlnlittee ofthe NEA has vo ed to convert the Plan to a rnt~ltiemployer p l d ~ pursuEurt to 1 Section 1 1 06 of the Pension P otection Act (PPA), The YEA Executive Cotnrnittee vote followed a vote by the Relirerdcnt Board, 8 to 5, rzcnmmcnding at the NEA Executive Committee not elect multiemp!ioyer status for the Plan.

I Our comments ;hC this j~nc tu re are as ~OI IQWS. W e reserve the right t 3 submit

Plan.

I additional comments after participants md retirees receive the Notice of Per ding Election that we understand the PPA r&uires NEA to send to participants and beneljiliaries in the

I 1001 PENNSYLVANIA AVE,. NW. SUlTE 600, W A ~ H I ~ G T O N , DC 20001 ( TEL. 201.713 1381 FAX; 202 7 8 3 392 1 WWW.HEA-LAW.COM

John H. I-Xanley, Director I Constance Marlcakis, Esq. 1 Page 2 I

1. The Depdment of d2aborLs Model Notice of Pending Election of Multienqloyer Stanrs, issued December 1, 2006, t;iated Illat PBGC had advi I ed it would "establish procedures md prodidc guudat~ce for making the election,'" and thht the

Department was "of I11e view at no eleaion ~mder 3(37)(C) [was] eflectiv unless made f a pllrs-t to such procedures, i oluding certification by the plan rdmlnistratob that il has complied with the notice reqwi emenis in section 3 (37(g)(~)(I).'" 1

Nowitl~sranding pmvicle guidance," no 2007, PBGC

13 notice, l~owev&, did not

guidance have not been publis ed to date. Nor did the '4plit 13 notice seek tomment on the "proposed pracedures."T e clotice only sought comrn~ilts on the idonriation PBGC

election.

t proposed to collect from and employers that arere contemplaling m a d g the

1

2. The failure to pub~idh procedures and guidance for review by the Iblrblic, including pdicipants and benbt~cinries and organizatio~rs representing the . is especially ur~fortunate in light of the safe/ harbor created by 11-I? draf? procedures that is not at all appwcnt h m t l~e PPA and F$JSA. (Our obtaining a copy uf the draft p ~ o c Aures through the PBGC websiie wds purely fortuitous.)

I

Section 4 ofthe draft grocedures provides a safe harbor, i.e. that a pl n will be

draR prooedurcs, including set tion 3(d)(3)(vi). I

1 deemed to comply with ERIS 44 and the PPA, that PBGC wilI approve Pit: plan's application for multiemployeq status, if the plan cornpIicr with Sectioils Z(c,j and 3 of the

I

As a result of the failmie ro pubiish the prscedurcs, participants and d eneficiaries were at a disadvantage in und~rstanding exactly what the PBGC was doing kith respect

Section 3(4(3)(vE) reduires the plan sponsor LO cedi@ that the plan 1s maintained by more than one unrelated ebployer pursuant to one or mort: collective bnfgnining agreements between one or m3re employee organizations and more than one enzploycr; that at least 50% of active par'$cipants cover:1.ed by lhe plan sue employed under collective bargaifing agreements; and tlqat at 1lea.s~ 50% of contributions reqt~ircd to ba made to the plan are under collective bargbining agreements.

to these election procedilres, apd were less able to educate tlrernsel\res ab-0~~1 the election on their pension pjians and their benefits.

t

tlre effect 01

John tl. Hanley, Director Constance Markakis, Esq. Page 3

Ow concern is with t d s "safe harbor," especially the first prong of. 4 ection 3(d)(3)(vi). The safe harbor y$pPeurs to broaden tile ERISA definition of n hultiernployer plan in section 3(37)(A), as to which more than one employer cafitribudes and one which is maintained collective bargaining agreements between bne ar more unions and more At the very least, the safe harbor ~roddt3s that this fiurdan~ental plan can be met with a certii?&ition.

I NSO nnd NEAR0 beE eve it is unlikely thal the NEB Plan can meet the

1-uquircmenl tlwt a plan be ma ntained by rnure lhan one unrelated en~ployc Control over h e Plan is exclusively il- he SEA. Only the NGA may mend or ter inate the i 1 i Plan, ihr example. Its atfilial employers do not "maintain" or control the I 12~1. Our concern is that an uncorrabordlted staternenl by a plan sponsor that co~~trols k11e plan may result in a major change in t11q sl~uctuu-e of the plan that will affect participahts' gi~armwed benefits. I I

I NSQ mil NEMXO, as lure11 a other representatives of participants al-d 1.

beneficiaries in his Plm, havv advised that they may ?\,file additional commi?nts on these and related issues alter the Nqtict of Pending EIecliol~ is distributed.

I I T h d c you for consid ring our comments. I

I fidt Eiscnrnmn Alden, PLL v F C h u ~ k Agerstrand, NSO Ron Golde~istein, NSQ Benefits Cornmiltee Chair

JOHN H. GOFFSTEIN GARY H. LANGE * TEFFREY E. HARTNETT RONALD C. GLADNEY PAIJL C. H E T I ' B M N * IAMES R. KIMMEY j m r E L. REYES-JONES BRIAN N. BURNS

LAW OFFICES

ATTORNEYS AND COUNSELORS 4399 LACLEDE AVENUE

ST. LOUIS, MISSOURI 63108 314-531-1054

Fax 314-531-1131 -- -

1750 New Yotk Avenue, N.W., Su~te 130 Washington, D.C. 20006

June 1 1,2007

Via Overni~ht Mail Legislative and Regulatory Department, Pension Benefit Guaranty Corporation 1200 K Street, N. W. Washington, D.C. 20005-4026

ILLIAM r-r. BARTLEY 1937 - 2004 JEROME T. BOLLATO, Ret.

P L E k E RESPOND TO n. LOUIS OFFICE

Re: Comments in Response to Implementing Proeeclures for a Special ~lc(ction Concerning Multiemployer Plan Status that May be Made Cinder the Employee RCtirement Income Security Act of 1974, as Amended by the Pension Protection Act of 2C1106; Comments of International Association of Bridge, Structural, Ornamental and I'ieinforcing Iron Workers Local Union District Pension Plan ("the Plan")

I

Dear Sir:

These comments supplement the comrnenis of the Segal Company, in comrhents representing approximately twenty (20) pension plans that are planning to make the elecdion authorized by Section 1 106 of the Pension Protection Act of 2006. The Plan is one of those twL"nty pension plans. As the Notice purporting to estabtisb implementing procedures observes, ~dction 1106 of the Pension Protection Act of 2006 ("PPA"), amends the definition of "multiemdloyer plan" under ERISA and the Code, to allow certain plans to elect to be rnultiemployer plans pursuant to procedures prescribed by the Pension Benefit Guaranty Corporation ("PBGC"). Provided that PBGC procedures are followed and the election i s made prior to August 17, 2007, suth election may be made. I The Plan is concerned that the extensive fact-gathering data requested by the PR 32 under the bwise of "procedures for implementing rnultiemplloyer plan elections" go far beyo h d the procedures necessary for such implementation. The information requested should be merCly the information minimally required to establish that rnultiemployer status exists under the PPA. The PPA test is met:

"if a collective bargaining agreement, expressly or otherwise, provides for or permits employer contributions to the Plan by on or more employers that are signatory."

t I

The procedures must, therefore, establish that this criterion is met. No other adc 4 itional information need be obtained, except for the tax-exempt status of the contributing employers and the date the Plan was established. Since with respect to the Plan, all such contributors are Idlcal unions, district councils, labor councils or apprenticeship funds, they are all tax-exempt brganizations, and rnultiemployer status exists. If at least two (2) separate employers are signlatory to collective bargaining agreements requiring them to contribute, then the Plan is rnaintdined pursuant io a collective bargaining agreement under ERISA. There is no necessity to provide a copy of each

I

Legislative and Regulatory Department, Pension Benefit Guaranty Corporation June 1 1,2007 Page Two

collective bargaining agreement requiring the employer lo contribute to the Ian, along with a breakdown of the number of Plan participants covered and the amount contributed1 or required to be contributed on their behalf, Such data goes only to a point of argument as to the wisdom of the PPA amendment. However, the PPA amendment itself is clear and does not require :fuch detail.

To qualify for the election, Section 11 06 requires that the Plan be maintained pur want to coElectfve I bargaining agreements and that "substantially all of the plan's employer contributions" are made by tax-exempt organizations. The definition of "substantially all" has been used in other contexts to mean at least 85%. See Central States Southeast and Southwest Areas Pension Fund v. Robinson Cartage Companv, 55 Fed. 3d, 1 3 1 8, 132 1 (7th Cir. 1 995); Continental Can Cotnpany v. Chicago Truck Drivers Pension Fund, 9 1 6 Fed. Zd, 1 1 54 (7th Cir. 1 990). I-lere, the Plan rntets that definition and can easily establish that more than 85% of its contributing employers are tax-exempt,

While specific requests for tax-exempt status have not generally been made, su d h requests are not required to achieve that status, Periodic filings made by the employers all assdrt the tax-exempt status of such employers and their nature as local unions, district councils, Ilabor councils or apprenticeship funds, further, by definition, establish their status as tax-exempt brganizations.

I Information beyond that required to show that more than two (2) contributions pursuant to collective bargaining agreements, that prior to 1974, and that substantially all contributing employers are tax-exempt requested under these implementing procedures. I Furthermore, the 2007 amendment to ERISA Section 1 006, calls upon the Depart I, ent of Labor, the Internal Revenue Service and the PBGC to apply the concept of "maintained pursuant to a collective bargaining agreement" whether or not the PBGC ultimate1 y approves the Plan subhission in support of its election. I Congressional intent is now clear, and it is the Plan's contcntion that such intent tdas clear, even with the PPA of 2006. Section 1 106 is crafied so that pension plans such as the Plan wctre covered, in that substantially all of the Plan's contributors are tax-exempt organizations, the Plzin's existence pre- dates September 1974, and it is a multiemployer plan as that term has generally bken defined in that more than one employer's contributions to the plan are required pursuant to collective bargaining agreements. Therefore, the Plan is "maintained pursuant to a collective bargaineing agreement."

Conclusion I It is respectfully submitted that inquiries pertaining to withdrawal liability n 1 lcs, control group information and other inquiries not directly related to the Section 1006 definition1 are irrelevant and beyond the scope of the procedures necessary to implement Section 1 106 of the PPA. Procedures necessary to make an election should be merely those procedures required to E plement Section 1 106, nothing less and nothing more.

L I

Very truly yours,

RCG:eb P \U~er~~1a1ne\GIadney\Intemation3! Iron Wnrkers\PBI;C\PRGC comment^ rc Spcclal blcctrtln] RCG wpdElarne